Tuesday, December 23, 2008

The NFL added a new wrinkle to its on-going battle with the NFLPA on Monday, filing an appeal with the 8th Circuit Court of Appeals on the very day that Federal District Court Judge Paul Magnuson had set as the deadline for scheduling further proceedings in the case of Pat and Kevin Williams, and three other NFL players, regarding the players' use of a banned substance.

Filing an interlocutory appeal is not an unusual tactic in federal court. There is, however, no certainty that the NFL will obtain the review that it is requesting and a much greater probability that the NFL's legal maneuver will serve only to further irritate Judge Magnuson and cast the NFL in a lesser light in the eyes of the Midwest-laden 8th Circuit judges.

Interlocutory appeals generally are granted only in the rare circumstance that the lower court, though having not yet completed deliberations on the case in issue, has completely misread the contested issue(s). Concerns for the fate of one party absent expeditious review of the claimed erroneous lower court review generally are required for the court of appeal to grant an interlocutory appeal.

The argument for not granting an interlocutory appeal is that it burdens the courts and undermines the process. By granting the interlocutory appeal, the court is essentially allowing a party to make the very case that that party likely plans to make should it lose its case in the lower court. That not only subverts the intended order of appeal but also substantially increases the likelihood of cases being brought to the court of appeals twice. That's not something that an already overburdened federal court judge will look upon lightly.

The NFL's primary argument in this case presumably is that Judge Magnuson erred by not identifying the plenary authority of the NFL to mete out punishment under the NFL-NFLPA Collective Bargaining Agreement (CBA). Under the CBA, the NFL is the sole arbiter on matters pertaining to league drug policy, including issues related to player suspensions and fines.

If the 8th Circuit grants the NFL a hearing on its appeal, it is a near certainty that it will be doing so because it agrees with the NFL. That would mean that the Vikings would lose Kevin and Pat Williams for the team's next four games, likely beginning with Sunday's game against the New York Giants for Kevin. Such a result seems highly unlikely, however.

As a general matter, the Federal Circuits have been split on the issue of granting interlocutory appeals. The Eighth Circuit has remained willing to consider such appeals but clearly favors not granting interlocutory appeals other than as a final resort.

Because there is no pressing urgency for the NFL to have its case heard, and because the issue that the NFL is raising on appeal is the very same issue that the NFL and the NFLPA already have before Judge Magnuson, there is little reason for the 8th Circuit to grant the NFL's interlocutory appeal.

The upshot for Vikings' fans is that Kevin Williams likely will be available to play for the remainder of the 2008 NFL season, as will be Pat Williams, should he recover from his injury in time.

Up Next: Dragging to the Line. Plus, more on the Williamses and the NFL CBA.